Opinion
30241.
DECIDED MARCH 11, 1944. REHEARING DENIED MARCH 23, 1944.
Damages; from Fulton superior court — Judge V. B. Moore. June 25, 1943. (Application to Supreme Court for certiorari.)
Heyman, Howell Heyman, for plaintiff in error.
Douglas, Andrews Cole, F. Lee Evans, contra.
1. The court did not err in overruling the demurrer to the amendment to the petition. The amendment merely enlarged upon the scope of the allegations of the petition respecting the defendant's duty to maintain its public crossing in a safe manner and in a safe condition.
2. The verdict is supported by evidence, and no error of law appearing, the court did not err in overruling the motion for new trial.
DECIDED MARCH 11, 1944. REHEARING DENIED MARCH 23, 1944.
Mrs. J. O. Twedell brought suit against the Atlanta West Point Railroad Company to recover damages for the homicide of her husband, who was killed as the result of a collision between an automobile driven by him and a train operated by the defendant at a public crossing in College Park, Georgia. The petition alleged in substance: That at the point in question the defendant's railroad was located in a northerly and southerly direction through the City of College Park, and was traversed by a certain public crossing known as McGehee's Crossing, which crossing lay in an easterly and westerly direction; that while the plaintiff's husband was driving an automobile in an easterly direction across said crossing, the automobile stalled on the crossing, and while in such position, was struck by a northbound train of the defendant, and from the collision her husband received injuries from which he died. It was specifically alleged that the front wheels of the automobile had just gone over the west rail of the northbound main-line tracks when the motor stalled and the car stopped astraddle of the said west rail; that at the time a freight train operated by the defendant, traveling in a northerly direction, was approaching the said public crossing at a speed of from twenty-five to thirty miles per hour; that while the decedent was endeavoring to get the automobile started, the said train traveling in said direction and at said speed, without any warning or signal, ran into the automobile in which the decedent was sitting, inflicting upon him fatal injuries; that the said crossing had been a public street crossing in the said municipality for twenty years or more, and that it was regularly used by the general public, all of which was well known to the defendant's agents and servants; that the crossing was not in good repair and safe for the public, in that the rails of the northbound tracks were at levels varying from the street level, thereby causing ridges and dips to be in the roadway of the crossing; that the failure of the defendant to keep said crossing in a good and safe condition was negligence per se, in that the same was in violation of the laws of this State; that the bell upon the locomotive of the train was not being rung as the train approached the crossing; that the agents and/or servants of the defendant were not looking in the direction of the crossing, but were looking in a westerly direction, until they were within approximately one hundred feet of the crossing, all of which acts were negligence per se, in that the same were in violation of the laws of this State; that the defendant was further negligent in operating its train through a thickly populated city at a rate of speed of twenty-five to thirty miles per hour, in failing to check the speed of the train before approaching the crossing, in failing to anticipate the presence of the decedent and his automobile on the crossing, and in failing to stop its train before hitting the automobile and the deceased; that the death of the plaintiff's husband was caused solely by the negligent acts of the defendant's agents and/or servants, as alleged; that the decedent at the time of the said collision was actively engaged in farming, was earning approximately $600 per year therefrom, was 54 years of age, and had a life expectancy of 18.28 years.
In its answer, the defendant admitted that the City of College Park was a municipal corporation, admitted the alleged description of the location of the crossing, and that the crossing was a public street crossing, in use for twenty years or more, regularly used, and that the same was known to the defendant's agents and servants; the answer also admitted the operation of the train on the alleged date, and a collision with an automobile at said crossing, and the allegation of the discovery of the automobile when the train was approximately one hundred feet from it; but the answer set forth a different version of the collision, as will hereinafter more fully appear. Alleging the want of sufficient information, the answer neither admitted nor denied that the plaintiff was the widow of the decedent, that his death resulted from injuries sustained in said collision, his occupation and earnings, his age and life expectancy, and the alleged cash value of his life at the time of his death. All other material and descriptive allegations were denied. The answer further alleged that when first observed by the engineer operating the train, the automobile involved in the collision had safely passed over the crossing; that as the locomotive approached within one hundred feet of the crossing, the car was observed by the engineer to have begun to roll back toward the track upon which the train was operating; that the emergency brakes were immediately applied, but before the train could be stopped, the automobile backed upon the track in front of the train; that the automobile had safely cleared the crossing, and the engineer had the right to assume that the driver of the machine would continue driving it away from the crossing; that the collision was the result solely of the negligence of the driver of the automobile in causing or permitting it to roll back into the path of defendant's train; that the train approached the crossing with the bell ringing, with the warning-whistle blowing, and with the engineer looking ahead vigilantly, in full compliance with all duties and obligations owed the traveling public in approaching said crossing; that if the husband of the plaintiff was killed as a result of a collision between an automobile and a train of the defendant, the death was the proximate result of the negligence of the decedent, and was not the proximate result of any negligence on the part of the defendant.
The plaintiff amended her petition by alleging: that the defendant failed to maintain a watchman or signaling device at the said crossing to warn those using it of the approach of trains operated by the defendant, and that such a failure constituted negligence; that the east approach to the crossing, at the time and place alleged, was not in good repair, in that it contained several bumps or ruts for a distance of approximately fifteen feet to the edge of the paved highway lying parallel to the northbound main track of defendant, that said approach was upgrade toward said highway, and that the defendant was negligent per se in failing to keep said approach in good repair, in violation of the laws of this State.
The defendant demurred to the amendment, asserting substantially: that the allegations of the amendment were irrelevant and immaterial to the cause of action alleged in the petition; were vague, general and indefinite; failed to show in what way the allegations of the amendment were connected with the injury or death of decedent; were conclusions without supporting facts; and did not present any basis of the breach of any duty established by the amendment or the original petition. The demurrer was overruled, and the defendant excepted pendente lite.
On the trial of the case, the plaintiff and her son testified on behalf of the plaintiff as follows: that the decedent was the husband of the plaintiff, and was living with her at the time he was injured; that his age was as alleged in the petition; that he was engaged in farming, and did odd jobs of carpentering and painting at the time he was injured, and that he earned at least the amount alleged in the petition; that neither witness saw the collision, but arrived upon the scene later; that the automobile involved was that of the decedent, and that the son witnessed the extrication of the decedent from the wrecked automobile. She introduced in evidence the Carlisle mortality and annuity tables. The defendant's evidence, which consisted of the testimony of thirteen witnesses and ten photographs of the crossing and its vicinity, raised a conflict as to the condition of the crossing, and whether the decedent's automobile had already crossed the track and was about to enter the paved road on the other side, or whether the car stalled momentarily, and then rolled backward upon the track into the path of the train, and as to the speed of the train as it approached the crossing, and as to whether the members of the train crew were keeping a lookout ahead as required by law. Most of the train crew testified that the bell and whistle of the train were being sounded as the train approached the crossing, but some witnesses, for the most part disinterested persons, did not recall whether or not the bell was ringing or the whistle blowing. The evidence was conflicting as to the condition of the crossing.
The jury found for the plaintiff, and the defendant made a motion for new trial, which was amended by the addition of eight special grounds, all directed at the charge of the judge to the jury. The amendment to the motion, in substance, alleged that the judge committed error (1) in charging the jury: (a) that the plaintiff was not required to prove every act or omission charged as negligence, but some one act or some acts; (b) upon the law regarding the duties of railroads as to maintaining crossings; (c) upon the law as to the sounding of the bell and whistle-signals; (d) upon the law as to keeping a lookout ahead; (e) upon the law as to controlling the movement of trains approaching crossings; (f) that allegations of negligence might be proved by circumstantial evidence; and (2) in failing to charge the jury that if they found that the incident happened as alleged in the defendant's answer, there should be a verdict for the defendant. The defendant contended that there was no evidence to warrant charging any of the foregoing matters that were charged; and that the evidence demanded that the judge charge the matter defendant contended should have been charged. The motion for new trial was overruled, and the defendant excepted, assigning error on its exceptions pendente lite to the overruling of its demurrer, and on the order overruling its motion for new trial.
1. The amendment to the petition was not subject to demurrer on any of the grounds interposed by the defendant, for only two matters were embraced by the amendment, and both had to do with the condition and maintenance of the crossing. The subject of the condition of the crossing was rather elaborately covered by the allegations of the original petition, wherein it was alleged that the crossing had been a public street crossing for twenty years or more, that the crossing was in an incorporated city, and that it was regularly used by the general public traveling over it, all of which was well known to the defendant. In its answer, the defendant had admitted those allegations. The amendment alleged that the defendant failed to maintain a watchman or signal device at the crossing to warn those using the crossing of the approach of trains, and was negligent in not affording a watchman or signaling device for such purpose. The court did not err in overruling the special demurrers to the allegations of the amendment charging negligence on the part of the defendant in failing to provide a watchman or signaling device, in view of the particular facts and circumstances alleged in connection therewith. Central of Georgia Ry. Co. v. Barnett, 35 Ga. App. 528 (1 a) 531 (134 S.E. 126). The plaintiff had alleged sufficient facts and circumstances in her description of the crossing to warrant the allegations of the amendment relative to the lack of a watchman or signaling device. The other matter added by amendment was an allegation that the eastern approach to the crossing was not maintained in good repair and in a safe condition, as required by law. The eastern approach was a part of the crossing required by law to be kept in good repair, and in a safe condition by the defendant. It was conceivable that the condition of the eastern approach, in view of its proximity to the eastern track (northbound track), and its being a part of the whole crossing, could have been related to the cause of action alleged by the plaintiff in her petition, and certainly it was related to the version of the incident as alleged in the defendant's answer. The defendant was the first to inject the eastern approach into the allegations. At any rate, as in the case of the allegations as to the lack of a watchman or signaling device, allegations as to the condition of the eastern approach to the crossing were allowable, in view of the particular facts and circumstances in connection therewith already alleged in the petition. The two matters alleged in the amendment were merely an enlargement upon the scope of the allegations already made respecting the defendant's duty to maintain its public crossing in a safe manner and in a safe condition.
2. There was evidence which tended to support the allegations of the petition with reference to the acts of negligence charged against the defendant. The jury were authorized to infer from the evidence that the defendant was negligent in failing to maintain the crossing as required by the statute; or in failing to sound the bell, and give the whistle signals; or in the failure of its train crew to keep the required lookout ahead; or in failing to keep under control the movement of the train as it approached the crossing. It is well settled that the proof of any one or more acts of negligence alleged will sustain a verdict. It was not proper for the trial judge to charge the jury that they should find for the defendant if they found that the incident occurred as alleged in the defendant's answer, for the existence of negligence was still a question of fact for the jury, even under the defendant's version of the collision; therefore there was no error in failing thus to charge the jury.
The plaintiff in error argues that its evidence is positive and emphatic, and describes the evidence of the defendant in error in terms equivalent to calling it negative evidence. While it is true that positive evidence must prevail over negative evidence when all other things are equal, still the rule applies only where the witnesses are of equal credibility. The jury could well have taken into consideration the fact that the so-called "positive" witnesses were employees of the defendant, and that the "negative" witnesses, for the most part, were disinterested persons. For treatment of the subject of positive and negative evidence, see Wood v. State, 1 Ga. App. 684 ( 58 S.E. 271); Benton v. State, 3 Ga. App. 453 ( 60 S.E. 116); Moore v. State, 57 Ga. App. 287 ( 195 S.E. 320); Hare v. Southern Ry. Co., 61 Ga. App. 159 ( 6 S.E.2d 65); Great American Indemnity Co. v. Oxford, 68 Ga. App. 884 ( 24 S.E.2d 726), and cit. Proof of physical facts may be sufficient to disprove even positive testimony. Atlantic Birmingham Ry. Co. v. Clute, 3 Ga. App. 508 ( 60 S.E. 277). And physical facts and circumstances may be sufficient to authorize the jury to disbelieve the witnesses of a party, and thereby to impeach them. Atlantic Birmingham Ry. Co. v. Clute, supra; Atlantic Coast Line R. Co. v. Paulk, 33 Ga. App. 293 ( 125 S.E. 865); McRae v. Wilby, 59 Ga. App. 401, 409 ( 1 S.E.2d 77). The fact that a witness is an employee of one of the parties is a proper matter to be considered by the jury in passing upon his credibility. Central of Georgia Ry. Co. v. Bagley, 121 Ga. 781 (4) ( 49 S.E. 780); McRae v. Wilby, supra. On the trial of the instant case there was evidence as to the physical facts and circumstances, and in many instances such evidence tended to conflict with the oral positive testimony. The evidence authorized the court to charge the jury on each and every principle complained of by the plaintiff in error. In each instance there was before the jury sufficient evidence to warrant their consideration of the several issues as to negligence. Questions of negligence, proximate cause, and failure to exercise ordinary care to avoid the consequences of another's negligence, are for the jury, except in plain and indisputable cases. Authorities in support of this well-settled principle are voluminous.
The jury having found for the plaintiff, and there being evidence to support the verdict, this court is without authority to disturb the verdict where no error of law appears. The court did not err in overruling the motion for new trial.
Judgment affirmed. Sutton, P. J., concurs.
Correctly interpreted, the evidence is uncontradicted as to how the injury occurred, and shows that the deceased had crossed the tracks before the approach of the train, and that his automobile rolled back on the track on which the train was running, into its path. I think it was error, in view of such evidence, for the court to submit to the jury issues as to matters which were not shown to have had any causal connection with the injuries. These issues were: the failure of the defendant to keep the crossing and its approaches in good repair; allowing its engine to approach the crossing without ringing the bell; failing to maintain the east approach of the crossing in good condition; and failing to maintain a watchman or signaling device at the crossing. I think a new trial should have been granted.